SHRI VISHNU KUMAR AGARWAL, Jaipur V. ITO, Jaipur

ITA 526/JPR/2012

• Counselvise Citation: [2017] 130 COUNSELVISE.COM (IT) 5626 (ITAT-JAIPUR)
• Duration Of Justice: 4 year(s) 7 month(s) 15 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 16-01-2017
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: B
• Assessment Year: 2005-2006
• Appeal Filed On: 31-05-2012
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: POONAM RAI DCIT DR DHK
• Assessee Lawyers: S L PODDAR
• Keywords: Unexplained cash credit; Additional evidence; Tax effect

Judgement Text

VK;DJ VIHYH; VF/KDJ.K] T;IQJ U;K;IHB] T;IQJ IN THE INCOME TAX APPELLATE TRIBUNAL, JAIPUR BENCHES (SMC), JAIPUR JH HKKXPUN] YS[KK LNL; DS LE{K BEFORE: SHRI BHAGCHAND, ACCOUNTANT MEMBER VK;DJ VIHY LA-@ ITA NO. 526/JP/2012 FU/KZKJ.K O'K Z@ ASSESSMENT YEAR : 2005-06 SHRI VISHNU KUMAR AGARWAL P/O M/S. DEEP JYOTI CO.B-219, JANTA COLONY, JAIPUR CUKE VS. THE ITO WARD- 5(2), JAIPUR LFKK;H YS[KK LA-@THVKBZVKJ LA-@ PAN/GIR NO .: ABIPA 3433 B VIHYKFKHZ@ APPELLANT IZR;FKHZ@ RESPONDENT VK;DJ VIHY LA-@ ITA NO. 548/JP/2012 FU/KZKJ.K O'K Z@ ASSESSMENT YEAR : 2005-06 THE ITO WARD- 5(2), JAIPUR CUKE VS. SHRI VISHNU KUMAR AGARWAL P/O M/S. DEEP JYOTI CO.B-219, JANTA COLONY, JAIPUR LFKK;H YS[KK LA-@THVKBZVKJ LA-@ PAN/GIR NO .: ABIPA 3433 B VIHYKFKHZ@ APPELLANT IZR;FKHZ@ RESPONDENT FU/KZKFJRH DH VKSJ LS@ ASSESSEE BY: SHRI S.L. PODDAR, ADVOCATE JKTLO DH VKSJ LS@ REVENUE BY: SMT. POONAM RAI, DCIT- DR LQUOKBZ DH RKJH[K@ DATE OF HEARING : 12/01/2017 ?KKS'K .KK DH RKJH[K@ DATE OF PRONOUNCEMENT : 16 /01/2017 VKNS'K@ ORDER PER BHAGCHAND, AM BOTH THESE APPEALS ARE THE CROSS APPEALS FILED AGA INST THE ORDER OF THE LD. CIT(A)-II, JAIPUR DATED 19-03-2012 FOR T HE ASSESSMENT YEAR ITA NO.526/JP/2012 SHRI VISHNU KUMAR AGARWAL VS. ITO, WARD- 5(2), JAIP UR 2 2005-06. THE GROUNDS RAISED BY THE ASSESSEE AND REV ENUE IN THE RESPECTIVE APPEALS ARE AS UNDER:- ITA NO. 526/JP/2012 ASSESSEE THAT THE LD. CIT(A) WAS NOT ALLOWED CASH CREDITOR S OF RS. 5,26,862/-. AS THE LD. CIT(A) SAID THAT THE ASSESSEE NOT FILED OTHER DOCUMENTARY EVIDENCE EXCEPT AFFIDAVITS. 2.1 AT THE OUTSET OF THE HEARING, THE LD. AR OF THE ASSESSEE VIDE LETTER DATED 12-05-2015 PRAYED FOR ADMISSION OF THE ADDITI ONAL EVIDENCE UNDER RULE 29 OF THE INCOME TAX RULES, 1963 AS TO THE GRO UND RAISED ABOVE. 2.2 THE LD. DR OBJECTED TO THE ADMISSION OF THE ADD ITIONAL GROUND RAISED BY THE ASSESSEE AT THE TIME OF HEARING. 2.3 I HAVE HEARD THE RIVAL CONTENTIONS AND PERUSED THE MATERIALS AVAILABLE ON RECORD. IT IS NOTED FROM THE ORDERS OF THE LOWER AUTHORITIES THAT THE ASSESSEE WAS PROVIDED ADEQUATE OPPORTUNITI ES FOR PRODUCING THE DOCUMENTARY EVIDENCE OF THE CREDITORS SUCH AS PAN/ VOTER CARD/ RATION CARD TO PROVE THEIR IDENTITY. THUS THE LOWER AUTHOR ITIES OBSERVED THAT THE GENUINENESS OF TRANSACTIONS OF CASH LOAN HAD NOT BE EN PROVED AND THE ASSESSEE HAD FAILED TO ESTABLISH THE IDENTITY, CRED ITWORTHINESS AND GENUINENESS OF THE CREDITORS AND THE LD. CIT(A) RES TRICTED THE ADDITION TO THE EXTENT OF RS.5,26,862/- IN THE HANDS OF THE AS SESSEE AS UNEXPLAINED CASH CREDITS BY OBSERVING AS UNDER:- ITA NO.526/JP/2012 SHRI VISHNU KUMAR AGARWAL VS. ITO, WARD- 5(2), JAIP UR 3 3.3 HOWEVER, THERE ARE CREDITORS WHO ARE NOT ASSESSED TO TAX. FURTHER THEIR IDENTITY HAS NOT BEE N PROVED. NO OTHER DOCUMENTARY EVIDENCE SUCH AS PAN / VOTER C ARD/ RATION CARD HAS BEEN FILED TO PROVE THEIR IDENTITY. THE GENUINENESS OF THE TRANSACTIONS OF CASH LOAN HAS AL SO NOT BEEN PROVED. I AM THEREFORE, OF THE OPINION THAT T HE APPELLANT HAS FAILED TO ESTABLISH THE IDENTITY, CREDITWORTHINESS OF THE FOLLOWING CREDITORS AND GEN UINENESS OF TRANSACTIONS. IN THE CASE OF DHANNA LAL BHANTIYA , EVEN THIS AFFIDAVIT HAS NOT BEEN FILED. CONSIDERING THE ABOVE FACTS, I DIRECT THE AO TO RESTRICT THE ADDITION ON ACCOUNT OF UNEXPLAINED CASH CREDITS TO RS. 5,26,862/- INSTEAD OF RS. 7,53,662/- MADE BY HER. THIS GROUND OF APPEAL IS PA RTLY ALLOWED. HENCE, I FIND NO REASON TO INTERFERE WITH THE ORDE R OF THE LD. CIT(A) ON THIS ISSUE. FURTHER, THE ADDITIONAL EVIDENCE FILED BY THE LD. AR OF THE ASSESSEE HAS NO SCOPE AT THE PRESENT SITUATION OF T HE CASE OF THE ASSESSEE WHICH IS NOT ADMITTED IN SPITE OF PROVIDING SUFFICI ENT OPPORTUNITIES BY THE LOWER AUTHORITIES ON THIS ISSUE IN QUESTION. THUS T HE APPEAL OF THE ASSESSEE IS DISMISSED. ITA NO. 548/JP/2012 REVENUE ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE IN LAW THE LD. CIT(A) HAS ERRED IN:- (I) DELETING THE ADDITION OF RS. 11,00,000/- MADE B Y THE AO ON ACCOUNT OF UNEXPLAINED DEPOSITS WITH PARTNER SHIP FIRM DESPITE THE FACT THAT ASSESSEE COULD NOT PROVE THE SOURCE OF INVESTMENT. (II) RESTRICTING THE ADDITION ON ACCOUNT OF UNEXPL AINED CASH CREDITS TO RS. 5,26,862/- INSTEAD OF RS. 7,53, 662/- MADE BY THE ITA NO.526/JP/2012 SHRI VISHNU KUMAR AGARWAL VS. ITO, WARD- 5(2), JAIP UR 4 AO DESPITE THE FACT THAT ASSESSEE FAILED TO PROVE IDENTITY, CREDITWORTHINESS OF THE CREDITORS AND GENUINENESS O F THE TRANSACTION. 3.1 I HAVE HEARD THE RIVAL CONTENTIONS AND PERUSED THE MATERIALS AVAILABLE ON RECORD. IT IS OBSERVED THAT THE DEMAND / TAX EFFECT IN THE REVENUES APPEAL IN QUESTION IS BELOW RS. 10.00 LA CS . UNDER THE POWERS VESTED BY SEC. 268A(1) OF THE I T ACT, CBDT HAS REC ENTLY ISSUED CIRCULARNO.21 OF 2015 DATED 10.12.2015(F NO. 279/MI SC. 142/2007-ITJ(PT) INSTRUCTING THE AUTHORITIES BELOW DEPARTMENTAL APPEAL SHOULD NOT BE FILED BEFORE ITAT WHERE THE DEMAND/TAX EFFECT DOES NOT EXCEED RS.10 LACS. THE C IRCULAR IS SPECIFICALLY MENTIONED TO BE APPLICABLE FOR ALL PEN DING APPEALS. 3.2 SUBJECT TO SOME EXCEPTIONS, IT IS FURTHER DIRE CTED BY CBDT THAT ALL THE DEPARTMENTAL APPEALS PENDING BEFORE ITAT WHERE THE DEMAND/TAX EFFECT IS LESS THAN 10 LACS SHOULD BE EITHER WITHDR AWN OR NOT PRESSED BY THE DEPARTMENTAL REPRESENTATIVES. 3.3 THE PRESENT APPEAL IS NOT COVERED BY ANY EXCEP TIONS MENTIONED IN THE SAID CBDT CIRCULAR. SINCE THE TAX DEMAND IN DIS PUTE IN THIS DEPARTMENTAL APPEAL IS BELOW THE LIMIT SET OUT BY C BDT FOR THE APPEAL THE SAME IS NOT MAINTAINABLE IN VIEW OF FORE GOINGS. AC CORDINGLY THE APPEAL ITA NO.526/JP/2012 SHRI VISHNU KUMAR AGARWAL VS. ITO, WARD- 5(2), JAIP UR 5 OF THE DEPARTMENT IS DISMISSED AS NOT PRESSED/WITHD RAWN. ON MERIT ALSO, IT IS OBSERVED THAT THERE IS NO SUBSTANCE IN THE AR GUMENTS OF THE LD. DR ON THE ISSUE RAISED ABOVE. HENCE I FIND NO REASON TO I NTERFERE WITH THE ORDER OF THE LD. CIT(A). THUS THE APPEAL OF THE REVENUE I S DISMISSED. 4.0 IN THE RESULT, THE APPEALS OF THE ASSESSEE AND REVENUE ARE DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 16/01 /2017. SD/- HKKXPUN ( BHAGCHAND) YS[KK LNL;@ ACCOUNTANT MEMBER TK;IQJ@ JAIPUR FNUKAD@ DATED:- 16/01/ 2017 *MISHRA VKNS'K DH IZFRFYFI VXZSF'KR@ COPY OF THE ORDER FORWARDED TO: 1. VIHYKFKHZ@ THE APPELLANT- SHRI VISHNU KUMAR AGARWAL,JAIPUR 2. IZR;FKHZ@ THE RESPONDENT- THE ITO, WARD- 5(2), JAIPUR 3. VK;DJ VK;QDRVIHY@ CIT(A). 4. VK;DJ VK;QDR@ CIT, 5. FOHKKXH; IZFRFUF/K] VK;DJ VIHYH; VF/KDJ.K] T;IQJ@ DR, ITAT, JAIPUR 6. XKMZ QKBZY@ GUARD FILE (ITA NO. 526/JP/2012) VKNS'KKUQLKJ@ BY ORDER, LGK;D IATHDKJ @ ASSISTANT. REGISTRAR